November

DEMOCRACY AND PUBLIC LAW

26, 2017

CENTRAL UNIVERSITY OF SOUTH

BIHAR

SCHOOL OF LAW AND GOVERNANCE

SubjECt- Comparative Public law/System

ystem of
Governance

PROjECt tOPiC:-Democracy
Democracy and Public Law

TO- Mrs.Poonam Kumari

SUBMITTED TO

Submitted by

Rohit Sinha

LL.M, 1st Smester

Session 2017-18

Enrollment No- CUSB1713131016

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Acknowledgement
The writing a project has one of the most significant academic challenges I have ever faced. Any
attempt at any level can't be satisfactorily completed without the support and guidance of learned
people. Gratitude is a noble response of ones soul to kindness or help generously rendered by
another and its acknowledgement is the duty and joyance. I am overwhelmed in all humbleness
and gratefulness to acknowledge our depth to all those who have helped us to put these ideas,
well above the level of simplicity and into something concrete effectively and moreover on time.

My first obligation, irredeemable by the verbal expression, is to our subject teacher

Mrs.Poonam kumari who has given me his valuable help in myriad way from the start to the
very end. She was always there to show us the right track when we needed his help. She lent his
valuable suggestions, guidance and encouragement, in different matters regarding the topic. She
had been very kind and patient while suggesting me the outlines of this project and correcting my
doubts. I thank her for her overall supports with the help of which I was able to perform this
project work.

I would like to extend the thanks to my parents for their selfless encouragement and support
given to me at critical junctures during the making to this project.

Last but not the least, I would like to thank my friends who helped a lot in gathering different
information, collecting data and guiding each other from time to time in making this project.

Rohit Sinha

CUSB1713131016

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AIMS AND OBJECTIVE

The aim of researcher, in doing the research work is to give a broad outline of Public Law in
Democracy. The project will further analyze the various aspect of Public Law in respect of
various legislations and rights which are relevant to the topic.

RESEARCH METHODOLOGY
As whole research work for this work is confined to the library and books and no
field work has been done hence researcher in his research work has opted the doctrinal
methodology of research. Researcher has also followed the uniform mode of citation
throughout the project work.

SOURCES OF DATA
For doing the research work various sources has been used. Researcher in the
research work has relied upon the sources like many books of International Law, Articles,
and Journals. The online materials have been remained as a trustworthy and helpful source
for the research.

SCOPE AND LIMITATIONS

Though the researcher has tried his level best to not to left any stone unturned in
doing his research work to highlight the various aspects relating to the topic, but the topic
being so vast and dynamic field of law and whose horizon and ambit cannot be confined
and narrowed down, the research work has sought with some of the unavoidable
limitations.

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Contents
INTRODUCTION .......................................................................................................................... 5
DEFINITION OF DEMOCRACY ................................................................................................. 6
CHARACTERISTICS OF DEMOCRACY ................................................................................... 7
TYPES OF DEMOCRACY............................................................................................................ 8
DIRECT DEMOCRACY............................................................................................................ 8
INDIRECT DEMOCRACY / REPRESENTATIVE DEMOCRACY ................................... 9
FUNDAMENTAL RIGHT TO EDUCATION .............................................................................. 9
INTERNATIONAL PERSPECTIVE REGARDING RIGHT TO EDUCATION ................... 10
CONSTITUTIONAL PERSPECTIVE REGARDING RIGHT TO EDUCATION IN INDIA 11
ENACTMENT OF THE RIGHT TO FREE AND COMPULSORY EDUCATION ACT, 2009
................................................................................................................................................... 12
RIGHT TO INFORMATION ....................................................................................................... 13
RIGHT TO INFORMATION IN INDIA: A LEGAL BACKGROUND ................................. 14
CONSTITUTIONAL PROVISIONS ....................................................................................... 14
JUDICIAL PRECEDENTS ...................................................................................................... 16
RTI : HALLMARK OF INDIAN DEMOCRACY .................................................................. 17
FREEDOM OF INFORMATION ACT ................................................................................... 17
SPEEDY TRIAL FACETS OF DEMOCRACY .......................................................................... 17
JUDICIAL DECISIONS ........................................................................................................... 18
FREEDOM OF SPEECH AND EXPRESSION .......................................................................... 20
LAW OF EXPRESSION UNDER INDIAN CONSTITUTION .............................................. 21
CONSTITUTIONAL ASPECT ............................................................................................ 21
FREEDOM OF EXPRESSION UNDER CONSTITUTIONS OF DIFFERENT COUNTRIES
................................................................................................................................................... 22
FREEDOM OF PRESS................................................................................................................. 23
DETAILS OF EXPRESSION RIGHTS ................................................................................... 24
BIBLIOGRAPHY ......................................................................................................................... 26

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INTRODUCTION
The concept of Democracy is traceable to the ancient Greeks and specifically the city-state of
Athens in the 5th century B.C. The word democracy is derived from the Greek words demos,
meaning people, and Kratos meaning power or rule. Directly translated, democracy therefore
means rule by the people, although originally the Greeks used it to mean the poor or the
masses. Periclean Athens names after its most celebrated leader, has inspired generations of later
political theorists statesmen, and common people alike. Yet many aspects of Athenian
democracy appear strange and unfamiliar to modern eyes. The central political institution in
Athens during the sixth and ffth centuries B.C. was the Assembly, usually composed
of 5,000 to 6,000 members and open to all adult citizens with the exception of
women, slaves and foreigners. By simple majority vote, the Assembly could decide
on virtually any domestic issue without any legal restrictions. Most remarkable,
perhaps, was the fact that the leaders of the Athenian Assembly were not elected,
but chosen by lot, as the Athenians believed that any citizen was capable of holding
public office.1
The problem with democracy has been its very popularity, a popularity that has
threatened the terms undoing as a meaningful political concept. In being almost
universally regarded as a good thing, democracy has come to be used as a little
more than a hurray! word, implying approval of a particular set of ideas or system
or rule. In the words of Bernard Crick (1993), democracy is perhaps the most
promiscuous word in the world of public affairs 2. A term that can mean anything to
anyone is in danger of meaning nothing at all.

Below are some of the meanings that have been associated with the concept of democracy:

A system of rule by the poor and disadvantaged;

A form of government in which the people rule themselves directly and continuously,
without the need for professional politicians or public officials;

1
Cincotta, Howard, What is Democracy? (U.S.Department of State: Office of International Information
Programs),7.
2
Heywood, Andrew, Politics (Macmillan Press Limited, 1997), 65.

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A society based on equal opportunity and individual merit, rather than hierarchy or
privilege;
A system of welfare and redistribution aimed at narrowing social inequalities;
A system of decision-making based on the principle of majority rule;
A system of rule that protects the rights and interests of minorities by placing checks
upon the power of the majority;
A means of filling public offices through a competitive struggle for the popular vote;
A system of government that serves the interests of the people regardless of their
participation in political office.

DEFINITION OF DEMOCRACY
Democracy is an ever developing term. Democracy has been rightly described by Education
policies Commission of National Educational Association as,

a great social faith which, in response to the yearnings and struggles of many races and
people has been developing through the centuries.3

Some important definitions by thinkers of democracy are being given as under:

a) According to Abhram Linclon (1809-1865),

democracy is the government of the people, by the people and for the people. 4

b) John Straut Mill (1806-1873), describes it as a form of government in which,

the whole people or some numerous portion of them, exercise the governing power through
deputies periodically elected by themselves.5

c) Robert Morrison Maclver (1882-1970) says:

3
The Education of Free men in American Democracy, Educational Policies Commission, National Education
Association, pp. 32-33.
4
Garner, W.J., Political Science and Government, (World Press, Calcutta, 1955), p.354.
5
Mahajan, V.D., Recent Political Thought, (2nd revised and enlarged ed., Premier Publishing, Delhi, 1956), p.314.

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Democracy is not a way of governing whether by majority or otherwise but primarily a way
determining who shall govern and broadly to what ends. 6

d) Lord Bryce says:

The word Democracy has been used ever since the time of Herodotus (Book V1, Ch. XL111) to
denote that form of government in which the ruling power of a State is legally vested, not in any
particular class or classes, but in the members of the community as a whole. 7

e) Dr. Radhakrishnan (1888-1975), says:

That democracy is not merely a political system but a way of life which affords equality to
everyone irrespective of the difference of race, religion, sex, economic status. 8

Thus, to some, democracy is a form of government; to others, it is a way of social life. The
essence of democracy as a form of government lies in its nature of franchise, the character of the
electoral system and the relation between the government and the people existing in a particular
nation. Democracy as a way of life has a different connotation; as for example to the communist,
it means economic equality amongst citizens, to a humanist, it implies the absence of disparities
in rights on the basis of caste, creed or birth. Thus, democracy comes out to be a complex term
and the only way to come out of this complexity owning to its diversity is to analyze each of the
meanings attached to it and to trace its development and growth according to time, situation and
mental progressive innovations for human betterment.

CHARACTERISTICS OF DEMOCRACY
Democracy is more than just a set of specific government institutions; it rests upon a well
understood group of values, attitudes, and practices all of which may take different forms and
expressions among different cultures and societies around the world. 9

6
Kapur, A.C., Principles of Political Science, Published by S. Chand and Company Ltd., 14th revised ed., New
Delhi, 1979, p. 289.
7
Bryce, James, Modern Democracy, (vol., 1, Published by Macmillan Company, New York, 1921), p.20.
8
Sharma Urmila, and Sharma, S.K., Principles and Theory of Political Science, Published by Atlantic Publishers
and Distributors (P) LTD, Vol.11, New Delhi, 2007, p. 434.
9
U.S. Department of State, Democracy in Brief (Global Publishing Solutions), 4.

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Below are some core democratic characteristics:

Democracy is government in which power and civic responsibility are exercised by all
adult citizens directly or indirectly through their freely elected representatives.
Democracy rests upon the principle of majority rule, which means that decisions are
made by majority and have to be accepted by all, but minority viewpoints are respected
and protected.
Democracies guard against all-powerful central governments and decentralize
government to regional and local levels, understanding that all levels of government must
be as accessible and responsive to the people as possible.
Democracies understand that one of their prime functions is to protect such basic human
rights as freedom of speech and religion; the right to equal protection under the law; and
the opportunity to organize and participate fully in the political, economic, and cultural
life of society.
Democracies conduct regular free and fair elections open to all citizens of voting age.
Citizens in a democracy have not only rights, but also the responsibility to participate in
political systems that, in turn, protect their rights and freedoms.
Democratic societies are committed to the values of tolerance, cooperation, and
compromise.

TYPES OF DEMOCRACY
Democracies fall into two basic categories, i.e. direct/participatory and representative
democracy.

DIRECT DEMOCRACY
In direct democracy, citizens, without the intermediary of elected or appointed officials, can
participate in making public decisions. Direct democracy thus reduces the distinction between
government and the governed and between the state and civil society; it is a system of popular
self-government. Its most common manifestation in the modern era is the use of referendum. 10
Direct democracy is most clearly practicable with relatively small numbers of people in a
10
Heywood, Andrew, Politics (Macmillan Press Limited, 1997), 297.

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community organisation, tribal council, or the local unit of a labour union, for example where
members can meet in a single room to discuss issues and arrive at decisions by consensus or
majority vote.

Ex-Switzerland, Uganda

INDIRECT DEMOCRACY / REPRESENTATIVE DEMOCRACY

Representative Democracy is a democracy in which the citizens elect officials to make political
decisions, formulate laws, and administers programmes for the public good. This type of
democracy is limited and indirect. It is limited in the sense that popular participation in
government is infrequent and brief, being restricted to the act of voting every few years. It is
indirect in that the public do not exercise power themselves; they merely select those who will
rule on their behalf. This form of rule is democratic only insofar as representation establishes a
reliable and effective link between the government and the governed.

Ex- India, Pakistan,

FUNDAMENTAL RIGHT TO EDUCATION

Education is the basis for development and empowerment of every nation. Education is the most
powerful weapon which can be used to change the world. In fact, education has its functionalism
in almost all spheres of life. Its signification can never be marginalized. An education can create
educated society which prepares the present generation for a bright future and enables the
individual to galvanize the capacity of collective.11 According to ancient thinkers in India, Vidya
or knowledge or learning or education is the third eye of man, which gives him an insight into
all affairs and teaches him how to act; it leads us to our salvation; in the mundane sphere it leads
us to all round progress and prosperity. 12

Emile Durkheim defined education as, the action exercised by the older generations upon those
who are not ready for the social life. Its object is to awaken and develop in the child those
physical, intellectual and moral states which are required of him / her both by his society as a

11
S. Gupta, Education in Emerging India, 2nd Ed. (2008), Shipra Publications, Delhi, p.1.
12
Ibid

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whole and by the milieu for which he is specially destined. 13 Presently, education is a
fundamental human right14 and essential for the exercise of all other human rights. It promotes
individual freedom and empowerment and yields important development benefits. The right to
education has been universally recognized since the Universal Declaration of Human Rights,
1948 and has since been enshrined in various international conventions, national constitutions
and development plans. The enacted Right of Children to Free and Compulsory Education Act,
2009 is a milestone in the field of educating millions of children, who are unable to reach the
schools due to poverty and illiteracy of parents.

INTERNATIONAL PERSPECTIVE REGARDING RIGHT TO

EDUCATION
The main international instruments have also recognized right to education as a basic human
rights. Article 26 of the Universal Declaration of Human Rights lays down that:

Everyone has the right to education. Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be compulsory. Technical and professional
education shall be made generally available and higher education shall be equally accessible to
all on the basis of merit.15

Besides this the principal global treaty which covers this right in the International Covenant on
Economic, Social and Cultural Rights (ICESCR), which under Article 13 also recognizes the
general right to education enumerated by the Universal Declaration of Human Rights (UDHR).
As per this covenant, the states parties to the present covenant recognize the right of everyone to
education. The states parties to the covenant recognize that primary education shall be
compulsory and available free to all. Secondary education in its different forms, including
technical and vocational secondary education, shall be made generally available and accessible
to all by every appropriate means, and in particular by the progressive introduction of free

13
Emile Durkhem, Education et. Sociologie (1992) T.B. Bottomore, Society (1986) p. 262.
14
Ibid
15
This was adopted and proclaimed by General Assembly Resolution 217 (III) of 10 December 1948.

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education.16 It is worthwhile to mention here that recently about 140 countries enacted Right to
education Acts.

CONSTITUTIONAL PERSPECTIVE REGARDING RIGHT TO

EDUCATION IN INDIA
Education is the most potent mechanism for the advancement of human beings. It enlarges,
enriches and improves the individuals image of the future. The founding fathers of the nation
recognizing the importance and significance of right to education made it a constitutional goal,
and placed the same under the constitution of India. The commitment enshrined in the preamble
and various articles of the constitution.17

Article 15(3) enables the state to make special provisions.

Article 21A deals with Right to Education.
Article 24 prohibits employment of children below the age of 14 years in hazardous jobs.
Article 39(f) recommends the protection of childhood again exploitation and moral and
material abandonment. The founding fathers made these safeguards to protect interest of
the weaker sections of the society.
Article 45 directs the state to provide free and compulsory education to all the children
under the age of 14 years.

Further, Article 46 declares that state shall promote with special care the education and economic
interest of the weaker section of the people. It is important to mention here that among several
Articles enshrined in Part IV; Article 45 has been given much importance as education is the
basic necessity of the democracy. In simple words, compulsory education is one of the elements
for stability of democracy, social integration and to eliminate social evils.

The judiciary showed keen interest in providing free and compulsory education to all the
children below the age of 14 years. In the year the Supreme Court of India decided two Public
Interest Litigation cases i.e. Mohini Jain and Unni Krishnan case in which the court enforced
right to education.

16
Article 13 of International Covenant on Economic, Social and Cultural Rights, 1966
17
The Constitution Of India, 1950

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In Mohan Jain vs. State of Karnataka,18 popularly known as the capitation fee case, the
Supreme Court has held that the right to education is a fundamental right under Article 21 of the
constitution which cannot be denied to a citizen by charging higher fee known as the captivation
fee. The right to education flows from right to life.

Subsequently, in Unni Krishna vs. State of Andhra Pradesh,19 the Apex court was asked to
examine the correctness of the decision given by the court in Mohini Jain case. The five judge
bench by 3-2 majority partly agreed with the Mohini Jain Decision and held that right to
education is a fundamental right under Article 21 of the constitution as it directly flows from
right to life. But as regards its content the court partly overruled the Mohini Jains case, and held
that the right to free education is available only to children until they complete the age of 14
years, but after the obligation of the state to provide education is subject to the limits of its
economic capacity and development.

ENACTMENT OF THE RIGHT TO FREE AND COMPULSORY

EDUCATION ACT, 2009
Presently, as a fundamental right, the provision of free and compulsory education to children was
added by the Constitution (Eighty Sixth Amendment) Act, 2002 and Article 21-A 20 is inserted.
The Right of Children to free and Compulsory Education Act or Right to Education Act (RTE)
passed by the Indian Parliamentary on 4th August 2009. In reality, this Act is a milestone which
provides for institutional instructions so that education as a fundamental right spreads to all
children between the age group of 6-14 years. The Act intends to provide full time elementary
education to every child in a formal school, which satisfies certain essential norms and standards.
Private education institutions have to reserve 25% of their seats starting from Class I. Strict
criteria for the qualification of teachers is also one of the important provisions. There is a
requirement of a teacher student ratio of 1:30 at each of these schools that ought to be met within
a given time frame. The school needs to have certain minimum facilities like adequate teachers,
playground and infrastructure etc. The Government will evolve some mechanism to help
marginalized schools comply with the provisions of the Act.
18
(1992) 3 SCC 666.
19
(1993) 1 SCC 6.
20
Supra 17

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Moreover, the concept of neighborhood schools that has been devised. This would imply that the
state government and local authorities will establish primary schools within walking distance of
one kilometer of the neighborhood. In case of children for class VI to VIII, the school should be
within a walking distance of three kilometers of the neighborhood. Moreover, unaided and
private schools shall ensure that children from weaker sections and disadvantaged groups shall
not be segregated from the other children in the classrooms nor shall their classes be held at
places and timings different.

While highlighting the main aspects of the Right to Education Act 2009, there are certain
limitations like, children below the age group of six are not covered; Act failed to promote a
common school system; lack of provisions for children with disabilities; criteria for reservations
of seats; financial assistance; provision regarding reimbursement to the private school; lack of
clear cut provision for competent authority; assuring quality standards; action against
government authorities in case of negligence in services etc.

RIGHT TO INFORMATION
Our capacity as human beings to acquire, use and store information is essential for our survival.
At a practical level disasters are avoided, accidents prevented and sustenance provided by our
use of information. While information itself is important, our ability to discern the degree of the
reliability of the information provided is essential in the exploitation of resources or
relationships, or in the exposure of sham. Information in the form of facts constitutes the basis of
the order in our lives, of community, regularity and knowledge.

Information as a term has been derived from the Latin words formation and forma which
means giving shape to something, and forming a pattern respectively? It adds something new to
awareness. Information is needed by human beings to realize their full social, political and
economic potential. It entails a spectrum of knowledge about various issues and involves
different stakeholders from market to government. It is the key which helps make decisions. It is
also a public resource collected and stored by government in trust for people.

The right to information has another sublime dimension. Every politically aware person desires
to play a part in the direction of the affairs if the community. Thereby he realizes his identity and

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feels he is a public contributory to social welfare. A culture of individual action, political

consciousness and public spirit is the basis for the success of democracy. The justification of
right to information is to be found in the interests of individual self fulfillment.

RIGHT TO INFORMATION IN INDIA: A LEGAL BACKGROUND

Disclosure of Government Information in India was governed by a law enacted during the British
rule, the Official Secrets Act of 1889 which was last amended in 1923. Though the intent of this
law was to secure only information related to security of the State, sovereignty of the country
and friendly relations with foreign states, it contained provisions which could make it a crime to
disclose even non-classified information. Civil Service conduct rules and the Indian Evidence
Act put further restrictions on government officials' powers to disclose information to the public.

On the other hand, the courts had consistently challenged attempts by the government to restrict
freedom of speech. In 1975, the Supreme Court delivered a judgment in which it held that the
peoplehave a right to know every public act, everything that is done in a public way, by their
public functionaries. For two decades, activists had had to fight to get this constitutional right
enacted into law. The National Campaign for People's Right to Information was formed in 1996
to work for legislation in this regard. Along with the Press Council of India, it wrote an initial
draft of a Right to Information Law.

CONSTITUTIONAL PROVISIONS
The Indian constitution has an array of basic and inalienable rights termed as Fundamental rights
contained in Chapter III. These include the right to equal protection of the laws and the right to
equality before the law, the right to freedom of speech and expression and the right to life and
personal liberty. These are backed by the right to Constitutional Remedies under Article 32.

The legal position with regard to the right to information has developed through several Supreme
Court decisions given in the context of fundamental rights. The legal discourse on the right to
information started with petitions of the press to the Supreme Court for enforcement of certain
logistical implications of the right of freedom of speech and expression such as challenging
governmental orders for control of newsprint.

A. Article 19 (1) (a)

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This provision guarantees the fundamental right to free speech and expression, which includes
within it the right to access information. The pre-requisite for enjoying this right is knowledge
and information. Thus the right to information becomes a constitutional right as the right to free
speech also guarantees right to receive and collect and information. Article 19(2) permits the
State to make such laws as to impose reasonable restrictions on the exercise of the freedoms
guaranteed under this provision on grounds such as security of the state, sovereignty and
integrity of India and other grounds as enumerated in the provision.

B. Article 21

This article talks about right to life and personal liberty, which includes the right to know about
things that affect our lives. The expression life and personal liberty is a broad term, which
includes within itself variety of rights and attributes. The Supreme Court read into this article as
a broad right to include right to know within its purview. The apex court held that right to
know is a necessary ingredient of participatory democracy... It is wide enough to expand to
a full range of rights including the right to hold a particular opinion and the right to sustain and
nurture that opinion. It confers on all persons a right to know which includes right to
information.

C. Article 32

This article guarantees a right to constitutional remedies on the situation of a violation of the
fundamental right of any citizen. The constitution also imposes certain duties upon the citizens
under Article 51 A. A fully informed citizen is better equipped for the performance of these
duties.

RTI is not specifically mentioned in the Seventh Schedule of the Constitution, and does not fall
under any of three subject lists of the Constitution. As such it is a residuary matter and the power
to legislate on such matters rests with the Central government.

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JUDICIAL PRECEDENTS
Bennett Coleman & Co. v Union of India21

The judges in this case remarked; it is indisputable that by freedom of the press meant the
right of all citizens to speak, publish, and express their view Freedom of speech and
expression includes within its compass the right of all citizens to read and be informed.

Dinesh Trivedi v. Union of India22

Which concerned the questions of the disclosure of the Vohra Committee Report, the Supreme
Court once again acknowledged the importance of open Government in a participative
democracy. The Court observed that: In modern constitutional democracies, it is axiomatic
that citizens have a right to know about the affairs of the Government which, having been elected
by them, seeks to formulate sound policies of governance aimed at their welfare. It went on to
observe that democracy expects openness and openness is concomitant of a free society and
the sunlight is a disinfectant.

M. Nagaraj v. Union of India 23

It was held that right to know and right to access information is implicit in the right of free
speech and expression guaranteed under Article 19(1) (a).

.The right to information has both intrinsic and instrumental value. Its intrinsic value comes
from the fact that citizens have a right to know. It is a crucial step towards a deeper, more
meaningful democracy. More tangibly, in a country like India it can promote action for
development and therefore has considerable instrumental value. Information enables people to
make enlightened choices, and keep tabs on elected representatives and officials who claim to act
on their collective behalf. Thus, accountability and transparency are both enhanced radically.

21
AIR 1973 SC 106
22
AIR 1997 SC 297
23
AIR 2007 SC 71

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RTI : HALLMARK OF INDIAN DEMOCRACY

Max Weber defined bureaucracy as a way of organizing the activities of any institution so that it
functions efficiently and impersonally. Almost two decades ago, Prime Minister Rajiv Gandhi
expressed his concern about only 15 paisa out of every rupee seeping through the Governments
delivery mechanism.

Access to information is one of the keys to democracy. Allowing people to seek and receive
public documents serves as a critical tool for fighting corruption, enabling citizens to more fully
participate in public life, making governments more efficient, encouraging investment, and
helping persons exercise their fundamental human rights..

FREEDOM OF INFORMATION ACT

Passage of a national level law, however, proved to be a difficult task. The Press Council draft
was rejected as too broad, as it included private companies under the term "public bodies". The
Consumer Education Research Council came out with a draft that would abolish the Official
Secrets Act, require all government bodies to publish a wide range of information and require
computerization of most records. This too failed to get Parliamentary approval. Eventually, after
the experience of state governments in passing practicable legislation, the Central Government
appointed a working group under H. D. Shourie and assigned it the task of drafting legislation.
The Shourie draft, in an extremely diluted form, was the basis for the Freedom of Information
Bill, 2000 which eventually became law under the Freedom of Information Act, 2002. This Act
was severely criticised for permitting too many exemptions, not only under the standard grounds
of national security and sovereignty, but also for requests that would involve "disproportionate
diversion of the resources of a public authority". There was no upper limit on the charges that
could be levied. There were no penalties for not complying with a request for information. For
these reasons, the Freedom of Information Act failed to satisfy activists for open government.

SPEEDY TRIAL FACETS OF DEMOCRACY

Justice is the natural urge of all human beings. The Constitution of India in its Preamble contains
'Justice' at the highest pedestal and significantly noticed justice higher than the other principles
i.e. liberty, equality and fraternity. Again, the Preamble clearly demonstrates the precedence to

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social and economic justice over political justice. But, in reality even after 58 years of the
adoption of Constitution, we find crores of cases rotting in courts in India, some of which are
pending for several years/decades. Some people die fighting their cases but do not get justice
during their lifetime, while thousands of under-trials languish and die in jails without conviction.
It is well known "Justice delayed is Justice denied".

The biggest challenge being faced by the Indian justice delivery system is that of delay in the
dispensation of justice. Heavy backlog of cases in the courts and inevitable delay in dispensing
the justice has been to such an extent that it is shaking public trust and confidence in the legal
system and it is tending to erode the quality of social justice and hampering the socio-economic
development of the country.24

Famous Jurist late Nani A. Palkhivala has gone on record to say:

"If I were asked to mention the greatest drawback of the administration of justice in India today,
I would say that it is delay. There are inordinate delays in the disposal of cases. We, as a nation,
have some fine qualities, but a sense of the value of time is not one of them. Perhaps there are
historical reasons for our relaxed attitude to time.
Ancient India had evolved the concepts of eternity and infinity. So what do thirty years, wasted in
litigation, matter against the backdrop of eternity? Further, we believe in reincarnation, what
does it matter if you waste this life? You will have many more lives in which to make good".

JUDICIAL DECISIONS
The on-point decision in this regard came in the 1979 case of Hussainara Khatoon v. Home
Ministry.25 Written by arguably the most aggressive protector of individual liberties in the
Courts post-Emergency period, Justice P.N. Bhagwati, the Hussainara Khatoon opinion
established for the first time that a defendant had a fundamental right to a speedy trial under
Article 21 of the Indian Constitution.26 Fueled by media accounts of the delays and horrendous
conditions of various prisons, Justice Bhagwatis ruling ordered a massive revamping in how the

24
Sikri A.K. Sitting Judge, Delhi High Court, 'Reforming Criminal Justice System', Naya
Deep, Vol. Ill, Jna. 2007, p. 39.
25
(1979) 3 S.C.R. 169.
26
Upendra Baxi, The Supreme Court Under Trial: Undertrials and the Supreme Court, 1 S.C.C. (JOUR.) 35, 3551
(1980).

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prison population was to be treated by the state. In the decision, the Court mandated greater
access to bail, more humane living standards,and a significant reduction in time from arrest to
trial.60 Furthermore, of comparative interest, the judgment referenced U.S. criminal procedure
law in key sections.61 It premised its rationale on a ruling from a year earlier, Maneka Gandhi v.
Union of India.27 With Justice Bhagwati also a main architect in that case, the Court stated that
from that point forward substantive due process would be formally recognized as a fundamental
aspect of the liberty provision of Article 21.28
In the years that followed, subsequent judgments reiterated the position set forth in Hussainara
Khatoon. In 1980, for example, the Court prohibited the continued handcuffing of incarcerated
under trials unless there was a clear and present danger of escape. 29 That same year, Justice
Bhagwati decried the delay and treatment of four young boysall under the age of twelve when
arrestedwho had been jailed awaiting trial for over eight years. 30 Bhagwati ordered an
immediate hearing. By 1981, the boys were finally acquitted of all charges with the assistance of
a committed grassroots activist, Vasudha Dhagamwar.
There were other emotionally wrenching cases involving the abuse of juvenile under trials that
the Court sought to remedy during the 1980s. 31 During this period, the Court dealt with the
ghastly blinding of under trial-prisoners in a northern Indian jail, 32 as well as whether under trials
could have the time already spent waiting in prison count towards a sentence once rendered. 33
With respect to the latter, in 1985 the Court answered affirmatively, holding that even defendants
sentenced to life imprisonment could receive such an offset. 34
Over the past two decades, the Court has furthered its commitment to enhancing the rights of the
under trials. In a landmark 1994 case, the Court ruled that for those under trial-defendants
accused of narcotics violations who had spent half [the time] of the maximum punishment

27
(1978) 2 S.C.R. 621
28
Ibid
29
Shukla v. Delhi Admin., (1980) 3 S.C.R. 855.
30
Pehadiya v. Bihar, A.I.R. 1981 S.C. 939
31
Munna v. Upper Pradesh, (1982) 3 S.C.R. 47
32
Yadav v. Bihar, (1982) 3 S.C.R. 533.
33
Kartar Singh v. Haryana, (1983) 1 S.C.R. 445,
34
Bhagirath v. Delhi Admin., (1985) 3 S.C.R. 743.

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provided for the offence,35 any further deprivation of personal liberty would be violative of the
fundamental right visualized by Article 21.36
Two years later, in two cases, the Court reiterated time limits for incarceration of undertrials. 37
The Court, in Shri Rama Murthy v. State of Karnataka, noted that given that the state had
193,240 people incarcerated of which 137,838 were under trialsjustice would best be served
by simply releasing the undertrials.38
In the 2000s, the jurisprudence of the Indian Supreme Court has continued to emphasize the need
to protect undertrial-prisoners rights. 39 While there has been the occasional case where the Court
has opposed an undertrial-prisoners petition,40 these instances have been few in the post-
Emergency era.

FREEDOM OF SPEECH AND EXPRESSION

Expression is a matter of liberty and right. The liberty of thought and right to know are the
sources of expression. Free Speech is live wire of the democracy. Freedom of expression is
integral to the expansion and fulfillment of individual personality. Freedom of expression is
more essential in a democratic setup of State where people are the Sovereign rulers. Iver
Jennings said, Without freedom of speech, the appeal to reason which is the basis of democracy
cannot be made.41 Milton in his Aeropagitica says that without this freedom there can be no
health in the moral and intellectual life of either the individual or the nation. 42
As defined by Laski Democracy is a Government by discussion could be successful only when
there is effective participation of the people in the Government. For this the people need be
educated.

35
Supreme Court Legal Aid Comm. v. India, (1994) Supp. 4 S.C.R. 386.
36
Saxena v. India, (2008) 63 A.C.C. 115
37
Upadhyay v. Andhra Pradesh, (1996) 3 S.C.C. 422
38
Shri Rama Murthy v. Karnataka, A.I.R. 1997 S.C. 1739.
39
Parekh v. Cent. Bureau of Investigations, (2009) 15 S.C.R. 1105
40
Parekh v. Cent. Bureau of Investigations, (2009) 15 S.C.R. 1105
41
Jennings, W.I., Cabinet Government, 13. [Cited in Dr. Madhabhusi Sridhar, The Law of Expression, An
Analytical Commentary on Law for Media 18 (Asia Law House, Hyderabad, 18, (2007)].
42
Johan Milton, Aeropagitica and Other Tracts, 27 (1644).

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In the words of Krishna Iyer J. This freedom is essential because the censorial power lies in
the people over and against the Government and not in the Government over and against the
people.
The freedom of expression has been considered as a necessary condition for a democratic polity.
According to Kant The fundamental postulate of liberty, is that, no man can be used as a means
as man is an end to him as well as to the others. 43

LAW OF EXPRESSION UNDER INDIAN CONSTITUTION

The people of India gave to themselves, the Constitution of India, with a view of make it
Sovereign, Democratic, Socialistic, Secular and Republic. In our democratic society, pride to
place has been provided to freedom of speech and expression, which is the mother of all liberties.
One of the main objectives of the Indian Constitution as envisages in the Preamble, is to secure
LIBERTY OF THOUGHT AND EXPRESSION to all the citizens. Freedom of Expression is
among the foremost of human rights. It is the communication and practical application of
individual freedom of thought. Irrespective of the system of administration, various constitutions
make a mention of the freedom of expression. While freedom of thought is a personal freedom;
freedom of expression is a collective freedom, whose character becomes more and more
pronounced as the technical methods of their diffusion multiply and improve.
The right of free speech is absolutely indispensable for the preservation of a free society in which
Government is based upon the consent of an informed citizenry and is dedicated to the protection
of the rights of all, even the most despised minorities. 44

CONSTITUTIONAL ASPECT
In order to give effect to this objective, freedom of speech and expression has been guaranteed
as a fundamental right under Article 19(1)(a)45 available to all citizens, subject only to
restrictions which may be imposed by the State under clause (2) of that Article. The relevant
portion of Article 19 reads as follows:
Article 19 (1) All citizens shall have the right

43
Immanuel Kant, "Meta Physics of Morals". [Cited in Dr. Madhabhusi Sridhar, The Law of Expression, An
Analytical Commentary on Law for Media 18 (Asia Law House, Hyderabad (2007)].
44
Speiser v. Randall, 357 US 513.
45
Supra 17

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(a) Freedom of speech and expression.

Article 19(2) Nothing in sub clause (a) of clause (1) shall effect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposed reasonable
restrictions on the exercise of the right conferred by the said sub-clause in the interests of
Sovereignty and Integrity of India, the Security of the State, Friendly relations with foreign
States. Public order, Decency or Morality, or in relation to Contempt of court, Defamation or
Incitement to an offence.
Article 19 (1) provides that all citizens shall have the right to freedom of speech and expression,
to assemble peaceably and without arms, to form associations or unions, to move freely
throughout the territory of India, to reside and settle in any part of the territory of India and to
practice any profession or to carry on any occupation, trade or business. The rights mentioned in
Article 19 (1) are not the exhaustive of all rights of a free man. Some of the rights falling outside
Article 19 are freedom to move, right of citizenship, the right to vote, or contest election, the
contractual right against the Government, right of Government servants to continue in
employment and the right to strike. The freedoms enumerated in Article 19 (1) are those great
and basic rights which are recognized as natural rights inherent in the status of a citizen. But
none of these freedoms is absolute or uncontrolled. The rights granted by Article 19 are available
only to citizens and not to aliens or foreigners.

FREEDOM OF EXPRESSION UNDER CONSTITUTIONS OF

DIFFERENT COUNTRIES
Freedom of Speech and expression is guaranteed by several Constitutions in the World. They
are:
(i) The First and Fourteenth Amendments to the Constitution of United States,
(ii) the common Law of England,
(iii) Section 40 (6)(1) of the Constitution of Eire, 1937.
(iv) Section 18 (1) (e)(f)(g) of the Constitution of Sri Lanka, 1972.
(v) Articels 50 and 51 of the Constitution of the USSR 1977, and
(vi) Section 298 of the Government of India Act, 1935.
The First Amendment to the Constitution of USA provides, Congress shall make no law
respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the

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freedom of speech or of the press; or the right of the people to assemble peaceably and to petition
the Government for a redress of grievance.

FREEDOM OF PRESS
The media is not a monolithic entity but rather a broad term encompassing a variety of content
provided to the public, or sectors of the public, over a range of platforms. There is no closed list
of content provided by the media: news, politics, business, current affairs, entertainment,
motoring, gardening, religion, home decor, fashion, food, celebrity and lifestyle are some of the
many topics covered by the media. Media world serves as the best communicator of information
and the best instrument of expression. Exercise of right of freedom of expression is the
professional duty and character work of media, whether it is print or electronic media. The media
gets as a mass communicator. It has to enjoy this freedom for promoting public good and for
informing the people in general as to the state of affairs in every sphere of life and activity. 46
In face of the colossal failure of three Constitutional organs of State, the citizen is reduced to a
state of abject helplessness. Thanks to free press, India remained a democracy against all odds. In
this complex environment, the one institution which nurtured, sustained and strengthened our
democracy is the press. The role of media/press during freedom struggle and after independence
has been an extraordinary and inspiring saga. After independence, the early excitement and
enthusiasm abated and as institutions of state became moribund and dysfunctional, the media
played an extraordinary role. It is this fierce independence, unflinching courage and
undiminished idealism exhibited by the media which broadened and deepened our democracy.
Therefore media is important pillar to lend its valuable support to the system and hence is
regarded as Fourth Estate. The Fourth Estate performs its multi-Pronged functions in linking
the three main systems and correlating them with the social needs to bridge the gulf between the
governors and the governed.
Mr. C. Rajagopalchari, the Governor-General of India, emphasizing the importance of the
Fourth Estate, states as under:

46
Dr. Madhabhusi Sridhar, The Law of Expression, An Analytical Commentary on Law for Media 22 (Asia Law
House, Hyderabad, 2007).

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A Free press is as essential limb of democracy as a parliament freely elected by the people or an
Independent Judiciary.
Justice Krishna Iyer in his article Free press in a hungry Republic stated:
The philosophical basis for the freedom of publication and circulation is the social purpose of
supplying unadulterated information without tendentious presentation, readily and the right time.
And the Constitutional rights stem from political philosophy. 47
The press performs some socially purposeful role. It is inherent in human nature to have desire to
communicate, to exchange ideas, to learn about changes in the environment and finally to seek
the truth without such mutual interaction society cannot function in order. The press enlightens
the public by reporting and interpreting what is happening in the world around them since the
newspaper is an eye for a citizen in the democracy.48

DETAILS OF EXPRESSION RIGHTS

Based on various judicial decisions and precedent from American and English Constitutional
interpretations, the following contents of the freedom of the Press have emerged :
A. Right to print and publish news i.e. actual facts of contemporary history and views 49.
B. Such views or opinions may be those of the editor or author but also those other people
printed under his direction.50
C. To distribute or circulate such printed matter to any other party. 51
D. The freedom extends to the discussion and publication of views relating to all issues
about which information is needed to enable the members of society to cope with the
exigencies of the period and is not necessarily confined to political or public affairs. 52
E. A corresponding right to collect the information relating to public affairs or the right of
access to the sources of such information.

47
Justice V.R. Krishna Iyer, Law, Freedom and Change 68 (East West Press Pvt. Ltd., New Delhi, 1975).
48
Subir Ghosh, Mass Media Today 42 (Rupa & Co. Distributor, Calcutta, 1991).
49
Sakal Paper (Pvt.) Limited v. Union of India, AIR 1962 SC 305.
50
Express Newspapers v. Union of India, 1958 SC 578
51
Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha and Others, AIR 1950 SCR 594.
52
Thornhill v. Alabama, 1950 310 US 88 (102).

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CONCLUSION
Democracy and the Public Laws are inextricably connected with each other. Urgent steps are
needed to enact new laws, implement existing one and repealing those who are not withstanding
modern society demand, without which our fundamental credentials as a democracy will be
seriously undermined. For Establishing Rule of Law our Public Laws must be implemented
Properly as Public Laws are primary source of governance.
While six decades of governance may not be long enough to assess the situation, huge social
expectations have been generated by institutions that are responsible for checking abuse of
power. But given that the capacity for dealing with abuse of power is disproportionate to the
demands imposed upon them by the sheer size and magnitude of the country, there have been
numerous unfulfilled promises.
The Indian judiciary is well regarded domestically and internationally for its progressive role in
interpreting various provisions of the Constitution with a view to promoting social justice.
Expanding the interpretation of the fundamental rights enshrined in the Constitution, overcoming
restrictions based on rules relating to locus standi, creating new avenues for seeking remedies for
human rights violations through public interest litigation pleas and promoting genuine judicial
interventions in the areas of child labour, bonded labour, clean and healthy environment, and
womens rights are a few examples of successful judicial intervention to uphold the rule of law
and ensure justice.
But to exaggerate these achievements in the Indian context, given the scale of inequalities and
injustices, would be completely missing the point. The Indian legal system is faced with
numerous crises starting with the fundamental challenge of enforcing the Public law. While the
system of governance in India is based on law, this does not necessarily translate into the
behaviour of those who govern and the governed to have respect for the law. This lack of respect
translates into serious threats to democracy as the legal system may not be able to respond to the
growing sense of lack of trust and faith in the institutions. But I am optimistic that current and
coming generation ill make India a vibrant democracies by enacting and implementing
progressive public laws as public law is the mirror and fuel of economy.

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BIBLIOGRAPHY
BOOKS/ JOURNALS

Garner,W.J., Political Science and Government, World Press, 1976,

Mahajan, V.D., Recent Political Thought, Premier Publishing, 1956,

Kapur, A.C., Principles of Political Science, S. Chand and Company Ltd, 2007

Bryce, James, Modern Democracy, Macmillan Company, 1921

Sharma Urmila, and Sharma, S.K., Principles and Theory of Political Science,

Atlantic Publishers and Distributors (P) LTD, Vol.11, New Delhi, 2007

Heywood Andrew, Politics,Macmillan Press Limited, 1997

S. Gupta, Education in Emerging India, 2nd Ed.,Shipra Publications, 2008

Dr. Madhabhusi Sridhar, The Law of Expression, An Analytical Commentary on Law for Media ,
Asia Law House, 2007

Upendra Baxi, The Supreme Court Under Trial: Undertrials and the Supreme Court, SCC, 1980

STATUTES

International Covenant on Economic, Social and Cultural Rights, 1966

The Constitution Of India, 1950
Universal Declaration of Human Right, 1948

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